Hays v. Ingham-Burnett Lumber Co.

• Decision Date: 12 January 1928
• Docket Number: 2 Div. 915
• Citation: 217 Ala. 524,116 So. 689
• Parties: HAYS et al. v. INGHAM-BURNETT LUMBER CO.
• Court: Alabama Supreme Court

116 So. 689

217 Ala. 524

HAYS et al. v. INGHAM-BURNETT LUMBER CO.

2 Div. 915

Supreme Court of Alabama

January 12, 1928

Rehearing Denied May 17, 1928

Appeal from Circuit Court, Greene County; Benjamin F. Elmore, Judge.

Bill in equity by Mary H. Hays and others against the Ingham-Burnett Lumber Company. From the decree, complainants appeal. Reversed and remanded.

Foster Rice & Foster, of Tuscaloosa, for appellants.

R.B Evins, of Birmingham, and E.F. Hildreth and J.F. Aldridge both of Eutaw, for appellee.

THOMAS J.

The appellants, being the owners of land, entered into a contract on April 29, 1912, with Harry R. Ray for the sale of timber thereon, and a right of way for a railroad for the purpose of removing timber. Ray's rights expiring within 10 years from date of contract, he was given 6 months' additional time, or until October 29, 1922, in which to re-enter upon said lands and remove any and all personal property, machinery, buildings, structures, and improvements placed on the land, and failing in this, said improvements shall be considered fixtures and belong to the said grantors. As to this, the wording of the contract is:

"*** Building, structures, and improvements placed or erected on said mill site shall be considered fixtures, and at the expiration of said period of 10 years shall belong absolutely to the said Charles Hays, Mary H. Hays, Anne M. Hays, and Ormond Hays, and the children of Charles Hays, but during the said period of 10 years the said Harry R. Ray shall have the right, power, and authority to repair and remodel the same at pleasure."

And it is further stipulated as to the railroad or right of way:

"*** The rights, powers, authority, and privileges given under this item of this instrument shall terminate and be at an end at the expiration of 10 years next after the date hereof, and at the expiration of said period of 10 years the said Charles Hays, Mary H. Hays, Anne M. Hays, and Ormond Hays and the children of said Charles Hays, their executors, administrators, heirs, and assigns, shall have the right to re-enter and retake possession of said right of way; and all of the rights, title, and claim of the said Harry R. Ray, his executors, administrators, heirs, and assigns, in and to said right of way or to the possession or use thereof shall be divested at the end of said period of 10 years; provided, however, that the said Harry R. Ray, his executors, administrators, heirs, and assigns, shall have an additional period of 6 months next after the expiration of 10 years, during which they may re-enter and take up and move the said ties, rails, and other parts of said railroad or tramroad, but if such ties, rails, and other parts of said railroad or tramroad, or any part of the same, shall not be removed within said period of 10 years and 6 months next after the date hereof, then the same or such part or parts thereof as shall be allowed to remain upon said right of way shall, at the expiration of said 10 years and 6 months, become and be the absolute property of said Charles Hays, Mary H. Hays, Anne M. Hays, and Ormond Hays, and the children of the said Charles Hays, their executors, administrators, heirs, and assigns."

The parties have thus, within the law, expressly provided by their contract that, if the ties, rails, and other parts of the railroad are not removed within the 10 year and 6 month period from date of contract, said subject-matter should "be the absolute property" of complainants. Such was the contract that inured to Ray, his heirs, personal representatives, and assigns, and under which he entered upon the land. The railroad was constructed on the right of way in question and used in removing the timber while the same was being cut, from the land of grantors and lessors, and thereafter for removing other timber cut from the lands purchased from other owners for the period stipulated. There was a failure to remove the railroad prior to the expiration of the stipulated period expiring October 29, 1922.

The rails used on such railway were not claimed under the contract for the sufficient reason that they were not the property of Ray, or his successors, but leased from a third party. In the estimation of the value of the railroad, the witness deducted the value of said rails in giving an opinion of the value or damages.

In the summer of 1922 the Ingham-Burnett Lumber Company purchased the rights of its predecessor, which was subject to the 10 year and 6 month limitation we have indicated, took possession of the right of way, and continued to operate the same railroad over and on complainant's land in the conduct of respondent's logging or lumbering business. In the fall of 1922 or 1923, that company took up the matter of acquiring the right of the further use of the railroad and right of way in pursuing its logging business on other lands, and its alleged negotiations to that desired end were with some of the joint owners, viz., Mary H. Hays, Anne M. Hays, and J.O. Hays.

The one disputed question of fact is the time of this first interview with said Mary, Anne, and J.O. Hays and the effect thereof. The witnesses Burnett and Grubbs fixed the time in the fall of 1922; and Mary H. Hays and Anne M. Hays testify that it was in the fall of 1923. Mr. McQueen corroborates them as being at the fall term of the circuit court in Greene county, and in 1923. The correspondence, made a part of his deposition, has a like tendency, and it is not to be supposed that the counsel would have so long delayed the preparation of the lease or conveyance.

The evidence of Grubbs and Burnett was to the effect that said appellants agreed to a further lease of the railroad for the period of 10 years, at $50 per year, that the contract was to be drawn by attorneys of the lessors, and for this purpose Grubbs and J.O. Hays sought and so requested Mr. McQueen when he was attending said circuit court. The evidence of the named appellants was that they only promised to examine the proposed contract, to then inform themselves as to the value of the rental of said property and determine whether they would enter into the lease sought by appellee. When the instrument was prepared by McQueen, the owners declined to execute the same, and there was a counter-proposition which appellee did not accept and took no further action to lease or condemn the lands, or, under the law, to provide for the further lawful use thereof. Such was the status when the bill was filed to ascertain just compensation, as may be provided by law, for the property taken and to enforce payment of that compensation for the use of the right of way and a railroad thereon, as the property of appellants. Respondent had the right of condemnation, and failed or declined to exercise the same (Code, § 7019), or to make just compensation for the lands taken, as it should have done (Const. § 235).

The evidence is not in conflict as to the value of the land taken for the right of way, viz., $389.46, with interest from October 29, 1922, or as for that, of the value of the railroad (exclusive of rails), it being fixed by the evidence of Finnell and Toxey, in the aggregate, at $6,881. The court granted relief for the value of the land, denied compensation for the railroad, and failed to give or indicate to appellants the process for the collection of the amount ascertained as just compensation to be paid by respondent.

The assignments of error are predicated on the part of the decree stated as follows:

"*** It is ordered, adjudged, and decreed by the court that the complainants are not entitled to any damages to their adjoining lands, nor to the cost of construction of the railroad embankments, bridges, timbers, cross-ties, or any other property connected with said railroad, nor to the value of the rails on said right of way, but only compensation for the lands taken up by said right of way."

We may observe that the court should have further protected the complainants by giving them the right to have execution issue for the damages awarded, after the expiration of 30 days, the time fixed for payment or the sum allowed as just compensation, or the decree should have been made effective by a writ of injunction against the further or continued use until the payment was made. Such effective process was necessary to compel the payment of the money judgment in favor of the landowners, and for the just compensation for the damages sustained. Such was the appropriate purpose and prayer of the bill or petition. Tombigbee R.R. Co. v. Loper, 184 Ala. 343, 63 So. 1006; Hargett v. Franklin Co., 212 Ala. 423, 103 So. 40; Highland, etc., Co. v. Matthews, 99 Ala. 24, 27, 10 So. 267, 14 L.R.A. 462; Cooper v. A. & A.R.R. Co., 85 Ala. 106, 4 So. 689; Code, § 7500; United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539, 545, 550. This was overlooked by the trial court's decree, concluding, as it does, that:

"It is further ordered, adjudged, and decreed that the register of this court

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